A short note for the benefit of comparative contract lawyers who may find some interesting material when looking into the failed LVMH /Tiffany acquisition. That acquisition agreement (see SEC filing here) is subject to the laws of Delaware other than claims against the financiers which are subject to the laws of New York (s.10.5). As readers might be aware, LVMH would seem to argue not that the Pandemic is a Material Adverse Effect which invalidates the merger. Rather, that Tiffany’s handling of its business in the pandemic is a MAE.
Of interesting comparative note therefore is Travelport Ltd & Ors v WEX Inc  EWHC 2670 (Comm) where Cockerill J preliminarily discusses the proper construction of, and burden of proof in relation to, the MAE definition contained in a Share Purchase Agreement (SPA) dated 24 January 2020. The substantive issues will be dealt with before her at a later stage.